Canadian Lawyer

July 2021

The most widely read magazine for Canadian lawyers

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Page 23 of 51

22 BUSINESS STRATEGY TOP PERSONAL INJURY BOUTIQUES SPECIAL REPORT CANADIAN DISTRIBUTION OF YEARS FROM INCDIENT TO JUDGEMENT preference for mass torts actions compared to class actions. "It appears that there may be a trend emerging in serious personal injury cases to commence individual actions in an effort to avoid the lumping together of claims," Miller says. "The mass tort process empowers plaintiffs and allows them a real voice in the outcome of their case." As well, amendments to the Class Proceedings Act also suggest a potential shift away from class actions in some instances. Says Miller: "The adoption of the question of fact or law common to the class members now being predominate over individual issues, may in fact create an environment in which it is difficult to certify class actions with respect to cases that involve personal injury or death." A notable example of plaintiffs opting for a mass tort approach over a class proceeding is the case of the downing of UIA Flight PS752. There were approximately 176 passengers on this flight who departed from Tehran on January 8, 2020. Minutes after take-off, the flight was shot down by the Iranian Military, killing everyone on board. Of the 176 passen- gers, 138 were eligible based upon the Mont- real and Warsaw Conventions. A class action commenced in January 2020. But at the certification hearing, a group of counsel representing 92 of the 138 passenger claims sought intervenor status at the motion to protect the rights of those who did not want to be part of the class action. The class was certified, Miller says, "but it is clear that the majority determined that a class was not the preferable procedure for their own case." Gary Will at Will Davidson LLP serving Ontario through offices in Toronto Bowman- ville, Midland, Huntsville, Oakville and Lindsay says his firm is also "somewhat moving away" from motor vehicle litigation and into areas such as medical malprac- tice and product liability. "These are fairly complex areas," he says, "you have to be specialized, you just can't dabble in this area." He adds his firm has put a lot of effort into training staff and lawyers "and having them go out and educate themselves in these new areas so they are ready to take them on." Will notes that COVID-19 has led to a decrease in personal injury cases resulting from automobile accidents there have been fewer cars on the road. But what has opened up is a new area in taking on insurance companies as businesses try to settle payouts on business interruption insurance. "There's a number of class actions and individual class from businesses who thought they had protection, and the insurers are fighting it," he says. Settling these cases will likely end up being decided on the specific wording of the insurance policies that busi- nesses signed. "It will likely take a while a year or two at least before these cases get fleshed out." "There's a number of class actions and individual class from businesses who thought they had protection, and the insurers are fighting it." Gary Will, Will Davidson LLP 0 0.00% 5.00% 10.00% 15.00% 20.00% 25.00% 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 years percent Source:

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